The 4T can occasionally get some things right, even though they tend to be buried beneath mistakes and setbacks. A good example is the initiative for a new General Law of Ecological Balance and Environmental Protection recently submitted by President Claudia Sheinbaum to the Senate. The new legislation follows the same basic architecture as the law currently in force and incorporates substantive advances, despite its heavy rhetorical and ideological ornamentation, ridiculous “inclusive language,” vague declarations and concepts with no legal consequences or practical application, and regulatory duplication (matters already covered by other laws).
One of its most notable virtues is the introduction of Strategic Environmental Assessment (SEA), operating at a higher level than Environmental Impact Assessment (EIA). SEA applies to policies and programs, as well as to strategic infrastructure, through an integrated approach. It can assess the impacts of different projects within a regional ecosystem context and prevent large developments from being fragmented into separate projects, as occurred, for example, with the Maya Train.
The problem is that SEA, as currently proposed, could allow individual projects to circumvent EIA requirements by implicitly authorizing them in advance and as a package—an extremely risky approach. SEA should be additional to, and hierarchically precede, EIA, rather than serve as a loophole for avoiding it.
The initiative also opens the door to the regularization of projects that have violated the law by being started and/or completed without authorization. This creates a powerful incentive for impunity and undermines the preventive principle, as has been seen in several of the 4T’s megaprojects.
Complex and Costly
It is noteworthy, however, that the initiative requires EIA to consider the cumulative impacts of different projects, although it fails to address carrying capacities and ecological thresholds. In any event, project developers will be required to consider broader ecological regions, direct and indirect impacts, cumulative and residual impacts, and compensation based on “equivalence” (which could prove prohibitively expensive). Environmental Impact Statements will become more complex and costly, and project developers will also be held responsible for impacts caused by third parties.
The initiative is silent regarding militarized “strategic” megaprojects classified as matters of “National Security,” as well as subsidies or “social” programs with major ecological impacts, such as Sembrando Vida. It does not explicitly subject them to environmental assessment requirements, public information and participation, mitigation, compensation, and restoration. This creates an enormous opening for ecological degradation, impunity, and corruption.
The new law presents Ecological Restoration as an “innovation” (although it is already provided for under the existing law), accompanied by a cascade of hollow and ineffective provisions, since there are no financial or regulatory instruments, adequate institutions or technical capabilities, or explicitly allocated budgets. Moreover, these provisions entail serious conflicts involving land ownership.
Of particular concern is that the initiative appears to eliminate CONABIO, a world-class benchmark institution, by subsuming its functions into SEMARNAT’s own central offices.
As a conceptual extravagance, the new law creates “Other Effective Conservation Measures” (OECMs), which are essentially ad hoc designations intended to inflate, on paper, the amount of protected territory reported under commitments arising from international agreements, while abandoning genuine conservation through Protected Natural Areas. Incidentally, there is no serious indication of how or by whom these OECMs will be managed, yet they will represent a new discretionary restriction on mining and infrastructure projects.
The initiative also virtually eliminates the requirement that revenues from licenses and permits, as well as visitor fees collected in Protected Natural Areas, be allocated to their own management and conservation, transferring their disposition instead to whatever is established under “fiscal regulations.” Resources derived from indirect environmental compensation paid by companies will likewise be transferred to the Federal Treasury.
This introduces contradictions and confusion among the different “pools” of environmental funding: revenues generated in Protected Natural Areas; Forest Land-Use Change payments; Environmental Liability funds; EIA compensation payments; and ordinary budgetary resources.
With regard to Ecological Land-Use Planning, the new law fails to clarify how federal land-use planning measures are to be reconciled with Article 115 of the Constitution, which grants municipalities full authority to regulate land use. The conflict with Municipal Urban Development Programs therefore remains unresolved.
Modernizing Environmental Information Sources
One positive aspect is that the new law modernizes the sources of environmental information and evidence available for inspection and enforcement by PROFEPA (now the Federal Environmental Justice Agency), through satellite technologies and remote sensing, georeferencing, and targeted inspections.
The worst feature of this initiative is that it assigns numerous new responsibilities to SEMARNAT without providing a single additional peso in funding, since, literally, these responsibilities “will not entail additional budgetary allocations,” nor does it earmark revenues generated in Protected Natural Areas for any specific purpose. This is manifestly cynical.
It should be remembered that current public spending gives priority to clientelist subsidies, as well as subsidies to PEMEX and military-run businesses.
The initiative contains some worthwhile regulatory advances, but to a large extent it is a cumbersome aspirational fantasy, laden with rhetoric, ambiguities, and discretionary powers that will deepen legal uncertainty.